Opinion
2017–13378 Index No. 36248/13
07-08-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Marie Monique AUGUSTE, appellant, et al., defendants.
C. Steve Okenwa, P.C., New York, N.Y. (Steve Okenwa of counsel), for appellant. Leopold Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Marissa Banez ], of counsel), for respondent.
C. Steve Okenwa, P.C., New York, N.Y. (Steve Okenwa of counsel), for appellant.
Leopold Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Marissa Banez ], of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Marie Monique Auguste appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated August 25, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer and counterclaim, and for an order of reference, and denied that defendant's cross motion to compel the plaintiff to produce the original note, for leave to amend her answer, and for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In December 2013, the plaintiff commenced this action against Marie Monique Auguste (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain property in Chestnut Ridge. The defendant interposed an answer asserting, among other things, the affirmative defense of lack of standing and a counterclaim for attorney's fees. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and counterclaim, and for an order of reference. The defendant opposed the plaintiff's motion and cross-moved to compel the production of the original note, for leave to amend her answer to assert affirmative defenses alleging the failure to comply with RPAPL 1304 and the notice of default provisions of the mortgage, and for summary judgment dismissing the complaint insofar as asserted against her on those grounds as well as lack of standing.
In an order dated August 25, 2017, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.
" ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ " ( Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Additionally, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 ; Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247 ). A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ).
Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting copies of the mortgage, the note, and evidence of the defendant's default (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ). Additionally, the plaintiff established its standing to commence the action by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note, endorsed in blank, to the certificate of merit filed with the summons and complaint (see U.S. Bank Trust, N.A. v. Porter, 175 A.D.3d 530, 532, 107 N.Y.S.3d 52 ). The plaintiff also established, prima facie, that it had complied with the notice of default provisions of the mortgage and with the notice requirements of RPAPL 1304 (see Bank of N.Y. Mellon v. Aiello, 164 A.D.3d 632, 83 N.Y.S.3d 135 ). In opposition, the defendant failed to raise a triable issue of fact.
Under the circumstances, the Supreme Court also providently exercised its discretion in denying those branches of the defendant's cross motion which were for leave to amend her answer (see CPLR 3025[b] ) and to compel the plaintiff to produce the original note (cf. Bayview Loan Servicing, LLC v. Charleston, 175 A.D.3d 1229, 108 N.Y.S.3d 161 ).
Accordingly, we agree with the Supreme Court's determination granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and counterclaim, and for an order of reference, and denying the defendant's cross motion to compel the plaintiff to produce the original note, for leave to amend her answer, and for summary judgment dismissing the complaint insofar as asserted against her.
CHAMBERS, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.